Did Australia Know Habib Was Being Tortured?

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Sometime in early November 2001, a terrified and confused Australian man named Mamdouh Habib was taken from a Pakistani prison cell trussed in chains. Someone within the US administration or intelligence system had decided he needed a tougher than usual interrogation and he was forced aboard a CIA-operated jet bound for Egypt. 

Egypt lived up to its reputation as home to one of the most brutal prison systems in the world.

Habib, a Bankstown-based father of four, says for the next five months he endured a myriad of horrors: suspended from the ceiling and beaten, shocked with electric prods (including on his genitals), forcibly injected with drugs, held in a flooded room with water up to his neck, deprived of sleep, and shackled in a cell so small he couldn’t stand. The "intelligence" produced from these efforts has long since been discarded as worthless and Habib has never been charged.

Nearly eight years on and still no one has been held accountable for this barbaric episode. In fact, authorities in both the United States and Australia are doing their best to make sure the details stay a secret.

Habib has always maintained that Australian officials were complicit in both his transfer to Egypt and his subsequent torture there. Despite best efforts, the official Australian position — that we had nothing to do with it — is unravelling.

Internationally, lawyers and human rights advocates pursuing justice for other victims of "extraordinary rendition" are finding themselves increasingly stymied, as the cover of "national security" is thrown over this Bush-era counterterrorism policy.

Still today, most of what we know about "extraordinary rendition" — aka "torture by proxy" — comes from the stories of those fortunate enough to survive. Canadian technology consultant Maher Arar was rendered from JFK airport in New York to a grave-sized cell in Syria for 10 months. (Arar’s own government has categorically pronounced his innocence and paid him compensation.) More recently, UK resident Binyam Mohamed told of being sent to a Moroccan prison for 18 months, where his body, including his genitals, was sliced with razor blades.

While President Obama has strongly denounced the use of torture, and made some modest disclosures about CIA "enhanced-interrogation" techniques, his administration has disclosed nothing about the rendition program.

When a major court case threatened to expose details of the rendition program, Obama’s Justice Department took the same approach as it did under the Bush administration — it argued that "state secrets" should prevent it being heard.

The case is a private compensation case brought by five victims of rendition against a subsidiary of the Boeing Company whose planes were allegedly used by the CIA to transport prisoners. The intervention by the Obama administration has effectively halted the case, possibly for years, prompting this damning critique from the American Civil Liberties Union Attorney on the case, Ben Wizner:

"The Obama Administration has now fully embraced the Bush administration’s shameful effort to immunise torturers and their enablers from any legal consequences for their actions. The CIA’s rendition and torture program is not a ‘state secret’; it’s an international scandal. If the Obama Administration has its way, no torture victim will ever have his day in court, and future administrations will be free to pursue torture policies without any fear of liability."

Rendition is not just America’s dirty secret — it also touches the countries that stand accused of aiding and abetting the rendition of their own citizens. Like the United Kingdom, and Australia.

UK resident Binyam Mohamed has claimed that British intelligence was complicit in the horrific torture he faced in Morocco. Just like the Habib case, Mohamed says his torturers were armed with information that could only have come from his home country.

A British parliamentary committee, doggedly pursuing these allegations and others of British complicity in torture, has found a "disturbing number of credible allegations" and called for an independent inquiry. The committee had trouble getting the full picture though because key ministers and the head of MI5 refused to testify.

Just how far the US will go to keep a lid on this was demonstrated by a development in Mohamed’s court action against the British government. A lawyer acting for the UK Government requested the High Court suppress part of the evidence in Mohamed’s case, not because it revealed anything of national security interest, but because the United States had threatened to halt intelligence sharing with the UK if the evidence in question was revealed.

This prompted High Court Judge, Lord Justice Thomas to respond in outrage, "That is not constitutional, it is the use of naked political power."

Successive Australian governments have also shown a determination to shut down Mamdouh Habib’s claims. Even before the plane from Guantanamo Bay landed, John Howard declared Habib wouldn’t be getting a cent of compensation. The Rudd Government is continuing the vigorous legal fight to have Habib’s compensation case against the Commonwealth thrown out of court even before it starts.

In a critical hearing which starts next Monday, the full bench of the Federal Court will be asked to decide whether, after years of legal wrangling, the case can go ahead.

Habib’s lawyer, Bankstown-based Peter Erman, says it’s been an incredibly complex legal case to establish. He does not argue that Australia was involved in the physical assault on Habib, but rather that its officials aided and abetted his maltreatment during detention in Pakistan, Egypt, Afghanistan and Guantanamo Bay. If this is found to be so, Australia would be in breach of the Geneva Conventions.

Erman has been forced to struggle through documentation heavily edited with the censor’s black pen to make his case. He believes at least some of these redactions are more about protecting the government’s position than protecting national security.

He cites as an example a document he received, redacted on the grounds of national security. By chance — obviously a mistake made in Canberra — he later saw the same document again in another proceeding, but this time without the redactions. The piece of information withheld on the grounds of national security? A statement by an ASIO officer that Habib presented as a "straightforward and truthful witness".

Habib’s long-standing claim that Australian officials were complicit in his illegal transfer from Pakistan to Egypt is, in part, founded on his account of the joint interrogations he endured in Pakistan. He says he was threatened with being sent to Egypt if he didn’t cooperate in the presence of Pakistani, Australian, and American officials.

Initially, some viewed this as a wildly implausible tale. The Australian Government steadfastly and repeatedly maintained it had no knowledge of the plan.

This exchange between then Foreign Minister Alexander Downer and Laurie Oakes on Channel Nine’s Sunday program in 2005 is typical:

"ALEXANDER DOWNER: I don’t have any evidence that the Americans took him there, to the best of my knowledge.

"LAURIE OAKES: He didn’t walk.

"ALEXANDER DOWNER: Well, he went from Pakistan to Egypt. There are a lot of different ways you can get from Pakistan to Egypt. I mean I just do not have that information."

Australia was — apparently — duped by its closest ally over the fate of an Australian citizen. It took seven years for government officials to acknowledge that this, of course, was not the case. Thanks to a series of Senate Estimates hearings in 2008, we now know that the Australian government and its agencies were aware of the possibility that Habib might be transferred to Egypt by the Americans — long before he was sent.

The public record now registers three occasions when Habib’s case was discussed: on 21 October 2001, when ASIO head Dennis Richardson was told by a US government official of a rendition plan; on 22 October 2001, when the Australian Federal Police (AFP) and ASIO were involved in a meeting in Pakistan where it was canvassed; and the next day in Canberra, where it was discussed with senior officials from the AFP, ASIO, Foreign Affairs, the Department of Prime Minister and Cabinet, and the Attorney-General’s Department.

Suddenly, Habib’s claim that his rendition was raised during the joint Australian/American interrogations that began on 24 October 2001 doesn’t sound so implausible after all. By their own admission, the AFP and the Attorney-General’s Department did nothing to stop Habib being rendered to Egypt. All ASIO admits to doing is telling the US that rendition wasn’t Australian policy.

Many questions remain. Could we have stopped it if we tried? Did we really try? Or, did we allow it — even encourage it — to happen?

Back in 2002 I asked the then Pakistani Interior Minister if the Australian government asked to have Habib deported back to Australia. He replied "No, they did not."

Habib’s lawyer Peter Erman says he’ll be alleging in court that "they did nothing to assist Habib in extracting himself from that situation." Erman has seen evidence relating to Habib’s detention in Pakistan that he can’t reveal, because in order to see it he had to give national security undertakings he wouldn’t discuss it, even with his client. But, he says, this evidence "would tend to assist the thrust of our case". All he can say is that this evidence "goes to the element of control, the Australian government’s control over the situation in Pakistan, as far as Habib’s detention was concerned".

Another critical element of Habib’s case is his allegation that his torturers in Egypt had access to personal information, specifically a sim card, that came from his home in Sydney. (ASIO raided his home when he was overseas, taking, among other things, a mobile phone.) The question of whether we shared information to assist Egypt in torturing an Australian citizen is something no Australian government minister or official has yet been prepared to answer.

Leading American defence Attorney Joe Margulies, from the MacArthur Justice Centre, has for years been fighting for the release of rendition victims and for accountability. While he acknowledges that the progress is slow, he says it’s worth fighting for. "Democracy dies in the dark and the only way there can be an intelligent discussion about the wisdom of these programs is a full disclosure of what exactly was done."

Not only is next week’s hearing in the Federal Court a chance to deliver compensation to a man whose life has been shattered, the case has the potential to finally shed some light on this secretive affair. There is, of course, no certainty the case will ever go ahead.

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